Immigration Post
January 9, 2015
India Post 45
www.indiapost.com
Why the lawsuit against Obama is a waste Cont'd from Page 44
The November 20, 2014 announcement defers the deportation of people who were in unlawful status as of the date of the announcement, and who were also the parents of US citizen or permanent resident children, provided they were in the United States before January 1, 2010. The previous Deferred Action for Childhood Arrivals (DACA) program has been expanded to include those who came to the United States when they were below 16 years prior to January 1, 2010 instead of January 15, 2007. The previous age limit of 31 that was imposed in the June 15, 2012 announcement has been lifted. Eligible people who are a non-priority for enforcement purposes can apply for deferred action, and obtain employment and travel authorization. The lawsuit is a waste of time and taxpayers money. The authors have argued in A Time for Honest Truth: A Passionate Defense of President Obama's Executive Actions (http:// blog.cyrusmehta.com/2014/11/atime-for-honest-truthpassionate.html) that the President clearly has the legal authority to exercise discretion with respect to prioritizing on whom to enforce the law against, especially when Congress has not provided sufficient funding to deport 12 million undocumented people all at once. Even the conservative establishment refers to those who desire to deport 12 million as the "boxcar" crowd. The truth is that deferred action is neither recent nor revolutionary. Widows of US citizens have been granted this benefit. Battered immigrants have sought and obtained refuge there. Never has the size of a vulnerable population been a valid reason to say no. Even if the law suit alleges that the President does not have authority, now is a good time to remind critics about Justice Jackson's famous concurrent opinion in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952), which held that the President may act within a "twilight zone" in which he may have concurrent authority with Congress. Unlike Youngstown Sheet and Tube Co. v. Sawyer, where the Supreme Court held that the President could not seize a steel mill to resolve a labor dispute without Congressional authorization, the executive branch under the recent immigration actions is well acting within Congressional authorization. In his famous concurring opinion, Justice Jackson reminded us that, however meri-
torious, separation of powers itself was not without limit: "While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity." Id. at 635. Although President Truman did not have authorization to seize the mill to prosecute the Korean War, Justice Jackson laid a three-pronged test to determine whether the President violated the Separation of Powers clause. First, where the President has express or implied authorization by Congress, his authority would be at its maximum. Second, where the President acts in the absence of congressional authority or a denial of authority, the President may still act constitutionally within a "twilight zone" in which he may have concurrent authority with Congress, or in which its distribu-
thorization. Even if such authority is implied and not express, Congress has not overtly prohibited its exertion but displayed a passive acquiescence that reinforces its constitutional legitimacy. Operating in Justice Jackson's "twilight zone," such constructive ambiguity creates the opportunity for reform through executive initiative. In terms of employment authorization issuance, Congress has rarely spoken on this except via INA § 274A (h) (3) (B), so that many instances of employment authorization issuance are purely an act of executive discretion justified by that one statutory provision. Furthermore, INA § 103(3) confers powers on the Secretary of Homeland Security to "establish such regulations, prescribe such forms or bonds, reports, entries and other papers; issue such instructions; and perform such other acts as he deems necessary for carrying out his authority under the provisions of this Act."
First, where the President has express or implied authorization by Congress, his authority would be at its maximum. Second, where the President acts in the absence of congressional authority or a denial of authority, the President may still act constitutionally within a "twilight zone" tion is uncertain. Under the second prong, Congressional inertia may enable, if not invite, measures of independent presidential authority. Finally, under the third prong, where the President acts in a way that is incompatible with an express or implied will of Congress, the President's power is at its lowest and is vulnerable to being unconstitutional. Through the Immigration Accountability Executive Actions, the President is likely acting under either prong one or two of Justice Jackson's tripartite test. INA Section 103(a) (1) charges the DHS Secretary with the administration and enforcement of the INA. This implies that the DHS can decide when to and when not to remove an alien..." INA § 212(d) (5), which Congress also enacted, authorizes the Executive to grant interim benefits for "urgent humanitarian reasons" or "significant public benefits." Parole can also be used to allow promising entrepreneurs to come to the United States and establish startups, although this and many other actions to help businesses have not been attacked in the law suit. Moreover, INA § 274A (h) (3) (B) provides authority to the Executive to grant employment au-
We reproduce the very penetrating and insightful comments of our esteemed colleague Jose R. Perez, who is a partner at Foster: It's my hope that Federal Judge Andy Hansen in Brownsville, TX, will do the right thing and dismiss this lawsuit based on: • 1: Lack of subject matter jurisdiction since the alleged cause of action is a 'political question' or a dogfight between the executive & legislative branches as there is no case or controversy for an Article III Court to decide; • 2: The plaintiffs lack 'standing' since the states have NOT suffered a palpable injury suffered and the 'alleged injury' is baseless and at best highly speculative since no undocumented alien has benefited from the executive actions of November 20, 2014; and • 3: Once implemented, the executive actions do NOT circumvent Congress or usurp our Constitution since President Bema has the executive authority under Article II of the U.S. Constitution and the statutory authority under the INA to grant deferred action based on law enforcement priorities as an act of prosecutorial discretion. Other presidents have done so. [ My family and I came to the U.S. as 'parolees' based on President Johnson's exercise of
discretion that allowed approx. 1 Million Cubans to be paroled and to eventually benefit from the Cuban Adjustment Act of 1966, a very open-ended and most favorable statute.] We wish to double down on these sage comments concerning lack of state standing to bring this lawsuit for they are its Achilles heel. This is not a case where a federal agency like the Environmental Protection Agency has declined a request by an affected state actor to regulate the emission of toxic greenhouse gas emissions whose presence in our air and water present a clear and present danger of environmental catastrophe. For this reason, the holding by the Supreme Court that the State of Massachusetts did have requisite Article III standing to sue the EPA is fundamentally inapposite both in logic and law. Massachu-
setts v. Environmental Protection Agency, 549 U.S. 497 (2007). Undocumented immigrants who work long hours at low pay doing the hard and dirty jobs on which we all depend but are loath to perform are not the cause or harbinger of global warming. Whatever grievances Texas and her sister states have , the proper forum for their expression and resolution in our system of governance is the Congress not the courts. See Lajan v. Defenders of Wildlife, 504 U.S. 555, 576 (1992). Courts are loath to review any non-enforcement decisions taken by federal authorities. See, e.g., Lincoln v. Vigil, 508 U.S. 182, 19192 (1993). Arizona v. United States, 132 S.Ct. 2492, 2499 (2012), articulated the true reason why: "[a] principal feature of the removal system is the broad discretion exercised by immigration officials… Cont'd on Page 46
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